It Takes a Village (or Maybe a State if the Village Can't) to Educate a Child

Client AlertOctober 11, 2018

Ohio’s “state school takeover” law, House Bill 70 (R.C. 3302.10), faces another test of its robustness with the Department of Education’s recent release of the State’s school report cards. Under the law, which became effective in October 2015, the state of Ohio will intervene and “take over” any school district that receives an “F” rating for three consecutive years. This intervention includes stripping the local Board of Education of all authority outside of proposing tax levies and replacing the local Board with a state-appointed distress commission. The newly appointed distress commission is comprised of 5 individuals: three individuals appointed by the state superintendent (one must be a local resident), one individual appointed by the local Board of Education, and one individual appointed by the local mayor.

House Bill 70 does not attempt to fix struggling districts at a snail’s pace. The five-person distress commission must appoint a CEO within 60 days. Subsequently, the CEO, whose salary is paid by the Department of Education, has a tight 90-day timeline to diagnose the district’s shortcomings and put together a recovery plan. Within this working plan, the CEO maintains complete operational, managerial, and instructional control over the district. As an example, if a school district continues to struggle for two years after the state takeover, the CEO has the unilateral authority to limit, suspend, or alter the district’s union contracts.

As was predictable, school districts vulnerable to state takeover have met House Bill 70 with significant resistance. To date, House Bill 70 has authorized takeovers in Youngstown, Lorain city, and the city of East Cleveland.

Youngstown
Youngstown City School District (“Youngstown”) was the first district susceptible to state takeover in 2015. In a strategy of anticipatory avoidance, Youngstown Schools alongside its teachers’ unions and other concerned parties sued the Department of Education in an attempt to obtain preliminary and permanent injunctions against the statute’s enforcement and a declaratory judgment that the statute is unconstitutional.

In Youngstown City Sch. Dist. Bd. of Educ. v. State of Ohio et al., Youngstown has been unsuccessful in obtaining an injunction both at the trial and appellate levels. The trial court was not convinced that Youngstown would win on the merits of any of its constitutional claims. Furthermore, the court mentioned that irreparable harm was not imminent considering only 1% of Youngstown’s graduating student population was “college ready.” The Tenth District Court of Appeals affirmed the lower court’s decision on the injunction’s denial and sent the case back down for adjudication of the declaratory judgment.

With respect to the declaratory action on the merits, the trial court determined that (1) the statute’s procedural history did not violate Ohio’s three reading rule, (2) the statute does not violate Ohio’s constitution vis-à-vis the scope of a local school Board’s authority and (3) the statute does not violate the U.S. or Ohio’s Equal Protection Clauses because Sixth Circuit law holds that an electorate does not have a fundamental right to specifically elect an administrative body such as a school Board; accordingly, the rational basis analysis indicates HB 70 is rationally related to a legitimate state purpose.

The trial court conclusively found no need for a permanent injunction because there was no irreparable harm as “the Youngstown City School District is in dire need of help and change.”

On appeal for the declaratory judgment ruling this past June, the Tenth District again blanketly affirmed the lower court’s rulings. Youngstown subsequently filed an appeal with the Ohio Supreme Court. This appeal is ongoing as the parties are still in the process of briefing whether or not the Court has jurisdiction over the case.

Via the Ohio School Boards Association (OSBA), Ohio’s local school Boards have rallied behind Youngstown’s cause. The OSBA, along with the Lorain City School District’s local Board joining separately, spearheaded an amicus brief to the State’s highest court in which the OSBA echoed Youngstown’s arguments.

East Cleveland
In Cuyahoga County, House Bill 70 has sparked renewed scrutiny in the past month as the city of East Cleveland’s local school district recently received the nod for a school takeover as well. The East Cleveland City School Board filed suit in September in the Cuyahoga Court of Common Pleas. A central theme in East Cleveland’s arguments is that the state testing and rating system is a flawed measure of success and faulty process. The State’s 29-page brief in opposition, supported by 211 pages of exhibits, asserts that East Cleveland’s arguments have “no hope of succeeding on the merits” as its statutory arguments rely on a fundamental misreading of the statute.

While East Cleveland faces a significant uphill battle, the pending case must first dispose of venue issues as the Department of Education argues this case should be in Columbus, not Cleveland. East Cleveland has additionally filed a separate amicus brief in Youngstown’s appeal to the Supreme Court.

Wait and See
In sum, the local Boards assert legal arguments that HB 70 unconstitutionally strips the local electorate of the right to control local schools and that the systems must be under local control in order to fix local problems. The State rebukes that the local Boards have had long enough to demonstrate progress and extreme measures are necessary in order to see meaningful results. The outstanding question is whether or not the U.S. and Ohio Constitutions grant the State the ability to implement such measures. The Ohio Supreme Court will let us know.